SATISH KUMAR MODI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) These two applications are heard together as the same questions of law and facts are involved in both these cases.

(2.) The contention of the learned counsel for the applicant in Crl. Misc. Application No. 1378/95 are as follows :

(3.) Modi Nagar Carpet Ltd. suffered continuous loss running to several crores with the result the same was declared sick unit under the Sick Industrial Companies (Special Provisions) Act, 1984 by the Board of Industries and Financial Reconstruction. A case was registered as the case No. 29/88 and on 9-11-1993 the Board for Industrial and Financial Reconstruction passed an order that the unit cannot be received or rehabilited and thus it came to the conclusion that it was just and equitable that the Modi Carpet Ltd. should be wound up. A copy of the said order dated 9-11-1993 is attached to the affidavit filed along with the application. However, against the aforesaid order an appeal was filed before the appellate authority of Industrial and Financial Reconstruction, the same was also dismissed on 18-10-1994 and a direction was issued that the company should be wound up under S. 20 of the Sick Industrial Companies (Special Provisions) Act, 1984. Copy of the order dated 18-10-1994 is attached to the affidavit of the application, and against the said order of the Board, a special leave petition, was filed before the Hon'ble Supreme Court challenging the order dated 18-10-1994 of the Board, but the Hon'ble Supreme Court vide its order dated 16-12-1994 directed that the company should exhaust all its remedy available under Art. 226 of the Constitution of India, however the Company did not file any writ petition in the Hon'ble High Court at Allahabad except the Writ Petition No. 5844/95 which was filed on behalf of the workers' Union of the Company, which is pending disposal in the Hon'ble High Court, Allahabad. Anyway, the order of the Board dated 9-11-1993 and that of the appellate courts' dated 18-10-94 have not been stayed, and consequently, the proceedings for winding up of the company are going on and the entire matter is before the Official Liquidator. One Sri Ramesh Trivedi filed a case being Case No. 51/94 before the C.J.M., Rae Bareilly, impleading a large number of Senior Officers, Directors, Managing Director, Chief Executive of Modi Carpet Ltd. u/S. 409/420, IPC, wherein it has been alleged that his provident fund dues have not been cleared and hence the accused persons in the complaint should be prosecuted. Copy of the complaint dated 28-5-94 is attached to the affidavit filed along with the application u/S. 482, Cr. P.C. As such in the said complaint case before the learned C.J.M., Rae Bareilly, statement of the complainant u/S. 200, Cr. P.C. and the witnesses u/S. 202, Cr. P.C. were recorded. It has been alleged that their contribution to the provident fund were not deposited in their accounts of provident fund by the Director. As such it is submitted that apart from the employer's contributions to the provident funds, they have intentionally mis-appropriated the money which was deducted from their remuneration as contribution to the provident fund. Copy of the complaint and the statements of the witnesses u/S. 202, Cr. P.C. along with the statement of the complainant u/S. 200, Cr. P.C. have been filed along the affidavit along with the application u/S. 482, Cr. P.C. However, the learned C.J.M., Rae Bareilly passed an order dated 6-2-95 for summoning the accused persons. Copy of the summoning order dated 6-2-1995 is attached to the affidavit filed by the applicants. However, it has been submitted by the learned counsel for the applicants that the entire proceedings right from the complaint up to the summoning order dated 6-2-1995, are wholly illegal and without jurisdiction and as such are not maintainable. However, so far as the applicant is concerned, he is the Director of the company and has never gone to the Factory, nor had he any occasion, directly or indirectly in the matter of provident fund realisation or payments. Thus the matters of provident fund, ESI etc. are dealt with by the officials who are incharge of those departments and Director of